In the matter of Melchior Pep, Member for Dei Open Electorate Western Highlands Province [2007] PGLT 1; N3134 (8 May 2007)

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PAPUA NEW GUINEA
IN THE LEADERSHIP TRIBUNAL APPOINTED UNDER SECTION 27(2)(a)
OF THE ORGANIC LAW
ON DUTIES AND RESPONSIBILITIES OF LEADERSHIP

IN THE MATTER OF A REFERENCE UNDER SECTION 27(2)
OF THE ORGANIC LAW
ON DUTIES AND RESPONSIBILITES OF LEADERSHIP

AND IN THE MATTER OF HONOURABLE MELCHIOR PEP, MP, MEMBER FOR DEI OPEN ELECTORATE, WESTERN HIGHLANDS PROVINCE

Cases cited and referred to
1. James Eki Mopio [1981] PNGLR 416
2. Leadership Tribunal of Honourable Michael Nali MP [2003] N2388
3. Leadership Tribunal of Honourable Bernard Hagoria MP [2003] N2525
4. Timothy Bonga v Justice Maurice Sheehan [1997] PNGLR 452
5. Leadership Tribunal of Honourable Peter Yama MP [2004] N2746

Peter Kelly with Harold Maliso, for the Ombudsman Commission
Paul Mawa with Dennis Igolena, for Hon. Melchior Pep, MP (Leader)

1. BY THE TRIBUNAL: A.THE REFERRAL: On 20 February, 2006 the Ombudsman Commission (hereafter ‘the Commission’) referred Honourable Melchior Pep MP Member for Dei Open Electorate Western Highlands Province for prosecution under the Leadership Code for alleged misconduct in office offences under section 27(1) and (2) of the Constitution pursuant to section 27(1) of the Organic Law on Duties and Responsibilities of Office (hereafter ‘OLDRL’).

2. The tribunal has no evidence of the precise date when the Public Prosecutor requested the Honourable Chief Justice to appoint a tribunal. It would have been sometime before 26 January 2006 because the only evidence before us is that by instrument under his hand dated 26 January 2006 the Honourable Chief Justice appointed this tribunal. And by letter dated 14 February 2007 which got dispatched to the members and received about a week later the members were formally notified of their appointments.

3. The tribunal comprising myself as Chairman, His Worship Regget Marum, SM and His Worship Felix Terra SM (hereafter ‘the tribunal’) commenced this inquiry on 12 March 2007. The sitting was fairly short as an injunction had been obtained against the tribunal from proceeding with the inquiry in the National Court on the application of the leader and the inquiry was forced to adjourn indefinitely pending judicial review application before the court.

4. The tribunal once again reconvened on 26 March, 2007 following dismissal of the judicial review application when the acting Public Prosecutor (hereafter ‘the prosecution’) formally presented altogether six (6) alleged charges of misconduct in office by the leader. Upon presentation of the charges the tribunal’s jurisdiction began and the leader automatically was suspended from duty on full pay by virtue of section 28 OLDRL.

5. Honourable Melchior Pep (the leader) is a sitting Member of National Parliament and Member for Dei Open Electorate in the Western Highlands Province. He was elected to this Parliament that has just risen in the 2002 National Elections and became Member for Dei Open Electorate on 18 July 2002 upon return of the writ for that Electorate. By becoming a leader according to the majority wish of his people, he is subject to the laws governing Leaders whose public and personal life are open to scrutiny at all times in their actions and conduct of their official and private affairs under what is commonly known as the Leadership Code in the Constitution and the Organic Law on Duties and Responsibilities of Leadership (OLDRL).

6. On 29 August 2002, Mr. Pep was appointed Minister for Health. The series of allegations for which the leader now stands charged before the tribunal for investigation allegedly arose during the period he held the portfolio of Health Ministry. At the time this tribunal commenced its inquiry he no longer held that office.

7. It is important, as it will become clear later on, that we discuss this point at the outset before we get into the substance of the investigation itself as a reminder to ourselves and by way of guidance of the onerous responsibility imposed upon us by the Constitution in the performance of the tribunal’s functions in our deliberations.

8. In the course of this investigation it became glaringly obvious to the tribunal that in respect of all the allegations referred for investigation and determination, there was no evidence of complaint by any one against the leader. No such evidence was led and we are satisfied of that. We stress this because whilst paragraph 7 of the introductory page of Statement of Reasons (hereafter ‘SOR’) at page 1 states quite categorically that ‘the Commission received information relating to the alleged breach of salaries and remuneration commission determinations, misappropriation of public funds by the leader between August 2002 and August 2003’, no such evidence was led or called before the tribunal. At the same time contrary to what is stated in paragraph 7, the next paragraph that follows states that ‘the Commission commenced this investigation on its own initiative’. Counsel for the Ombudsman advised that the Commission did not need a complaint to conduct its inquiry into any misconduct offence. This we fully agree as it is a constitutional responsibility of the Commission mandated by the Organic Law on the Ombudsman Commission (hereafter ‘OLOC’) made pursuant to section 28 of the Constitution that gives this wide and unrestricted power to the Commission to undertake investigations on its own volition or initiative as stipulated under section 13 of this Organic Law (hereafter ‘OLOC’). That section provides as follows:

For the purposes of Section 219(1)(a) (functions of the Commission) of the Constitution the functions of the Commission, in addition to the functions specified in Section 219(1)(b), (c), (d) and (e) (functions of the Commission) of the Constitution, are to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of—

(b) any governmental body, or an officer or employee of a governmental body; or

(c) any other service or body referred to in Section 219(a)(functions of the Commission) of the Constitution that the Head of State, acting with, and in accordance with, the advice of the National Executive Council, by notice in the National Gazette, declares to be a service or body for the purposes of this section."

9. We raise this point at this juncture because in the course of the proceeding, it became apparent from prosecuting counsel’s advice and according to the materials before us that the investigation of the leader was instigated or prompted by his declaration of insolvency by court order dated 20 October, 2004 which was widely publicized in the daily newspapers. The Post Courier carried this news as its lead article on the front page of Thursday 21 October 2004 edition of its paper under the heading ‘Pep bankrupt! Minister to lose office.’

10. Armed with this news, the Commission using its powers under section 13 OLOC, put its inquiry into motion covering a wide field, thereby resulting ultimately in the leader being given notice of his right to be heard by letter dated 5 January, 2005. Following receipt of the leader’s response to the various allegations that the Commission had reasons to be concerned about, the Commission referred the leader for prosecution by the Public Prosecutor in respect of the six allegations that are now before the tribunal for its investigation and determination.

11. We shall set out the charges in the way they were drafted and presented before us in due course but for simplicity sake and for the benefit of want of understanding of the allegations against the leader, we summarise as best as we can fairly comprehend, the allegations against the leader under each count.

Count 1 – Double-Dipping of Transport Allowances Under SRC Determinations G97-03

12. In this count, the leader is alleged to have received double benefits under his transport or motor vehicles entitlements by having at his disposal on 24 hours a fully serviced motor vehicle at the expense of the State provided by the Department of Health when he became and was the Minister for Health and also obtained fuel for his official vehicle paid for by the Department of Health when he was already receiving allowances for those same benefits through his fortnightly salary with the National Parliament as provided for by the relevant Salaries and Remuneration Commission ( hereafter ‘SRC’) Determinations, as such he was guilty of double-dipping.

14. In count 2, the allegation of misconduct or improper conduct against the leader is for awarding a road maintenance contract in his electorate to a contractor without calling for public tender as the guidelines for the use of District Support Grants required which was issued by the Office of Rural Development (ORD) pursuant to the Organic Law on Provincial and Local Level Governments as amended.

Count 3 – Applying K79,100.00 of DSG funds in cash cheques contrary to law

16. In this count, the leader is alleged to be guilty of misconduct or improper conduct by applying K79,100.00 in discretionary funds at his disposal contrary to law in that he and the members of Dei Joint District Planning and Budget Priority Committee (JDP &BDC) Sub-Committee On Small Projects withdrew and paid out monies out of trust account to recipients in cash instead of raising cheque payments in the payees’ names.

18. In count 4, which is the same with counts 5 and 6, the leader is alleged to be guilty of misconduct in that when he submitted his annual statements for the periods 2001-2002, 2002-2003 and 2003-2004, he failed to disclose to the Ombudsman Commission that he had debt owing to another person which is against the law. It is this debt that ultimately led to him being declared bankrupt.

19. The leader has admitted this allegation, including the same allegations in counts 5 and 6, and gave his explanations which are also very much the same.

Count 1:	THAT between the 7th August 2002 and the 29th October 2003 the Leader conducted himself in his public life and in his associations with other persons in such a way that he:

	(a) placed himself in a position in which he had or could have had a conflict of interest or might be compromised when discharging his public or official duties; and
	(b) demeaned the leadership offices and positions that he held; and
	(c) allowed his public or official integrity and his personal integrity to be called into question; and
	(d) endangered and diminished respect for and confidence in the integrity of government in Papua New Guinea.
	(e) allowed his public or official integrity and his personal integrity to be called into question; and

	AND FURTHERMORE used his office for personal gain;

	AND FURTHERMORE engaged in an activity that might be expected to give rise to doubt in the public mind as to whether he was carrying out the duty imposed by Section 27(2) of the Constitution;

	AND FURTHERMORE used his official position for his personal benefit except in the course of and for the purpose of his official duties or official position;

	IN THAT being in receipt of vehicles provided to him by the State:

	(i) he received vehicle operational costs for a support vehicle when it was fully maintained by the State; and, (ii) refuelled his Port Moresby or official vehicle using the Department’s fuel account;

	whilst at the same time receiving operational costs allowances every fortnight paid through his salary;

	THEREBY contravening Sections 27(1)(a), 27(1)(b), 27(1)(c), 27(1)(d), 27(2) and 27(5)(b) of the Constitution and Section 5(1) of the Organic law on the Duties and Responsibilities of Leadership.

Count 2:	THAT between 20 March 2003 and 28 May 2003 the Leader, conducted himself in his public life and in his association with other persons in such a way that he:

	(a) demeaned the leadership offices or positions that he held; and (b) allowed his public or official integrity and his personal integrity to be called into question; and (c) endangered and diminished respect for and confidence in the integrity of government in Papua New Guinea.

	AND FURTHERMORE engaged in an activity that might be expected to give rise to doubt in the public mind as to whether he was carrying out the duty imposed by Section 27(2) of the Constitution;

	IN THAT as Chairman of the Dei Joint District Planning and Budgetary Priority Committee (JDP&BPC) he did fail to comply with the Office of Rural Development (ORD) guidelines and requirements in the approval, selection and tender process concerning the awarding of a contract to Wellcos Engineering Ltd.

	THEREBY contravening Sections 27(1)(b), 27(1)(c), 27(1)(d), 27(2) and 27(5) of the Constitution.

Count 3:	THAT between 15 July 2003 and 18 September 2003 the leader conducted himself in his public life and in his association with other persons in such a way that he:

	(a) placed himself in a position in which he had or could have had a conflict of interest or might be compromised when discharging his public or official duties; and (b) demeaned the leadership positions or offices that he held; and (c) allowed his public or official integrity and his personal integrity of government in Papua New Guinea; (d) endangered and diminished respect for and confidence in the integrity of government in Papua New Guinea; (e) engaged in an activity that might be expected to give rise to doubt in the public mind as to whether he was carrying out his duties as a leader; and (f) used his official position for the benefit of himself and others; and (g) intentionally applied money forming part of a fund under the control of Papua New Guinea to purposes to which it could not be lawfully applied; and (h) intentionally agreed to apply public funds to purposes they could not be lawfully applied to.

	IN THAT having been allocated K80,000.00 from the Office of Rural Development, being public money allocated for the development of Dei Open Electorate to be applied at his discretion in 2003, he:-

	(i) intentionally agreed to expend public monies meant for funding projects contrary to the Organic Law on Provincial Governments and Local-level Governments; and (ii) intentionally agreed to make cash payments contrary to the Public Finance Management Act 1995 and Public Finances (Management) Regulations 1996 and relevant guidelines regulating the disbursement of public funds; and (iii) intentionally agreed to apply public money to personal use and benefit to the benefit of his associates; and (iv) failed to apply these funds for the development of his electorate.

	THEREBY contravening Section 27(1)(a), 27(1)(b), 27(1)(c), 27(1)(d), 27(2) and 27(5) of the Constitution and Sections 5(1), 13(a) and 13(b) of the Organic Law on the Duties and Responsibilities of Leadership.

Count 4:	THAT the leader on the 8th day of September 2002 conducted himself in his public life and in his association with other persons in such a way that he:

	(a) demeaned the leadership positions or offices that he held; and (b) allowed his public or official integrity and his personal integrity to be called into question; and (c) endangered and diminished respect for and confidence in the integrity of government in Papua New Guinea; (d) engaged in an activity that might be expected to give rise to doubt in the public mind as to whether he was carrying out his duties as a leader; and (e) failed to honestly declare his liability to the Ombudsman Commission when he was obliged to, thereby knowingly, recklessly or negligently giving a statement that was false, misleading or incomplete in a material particular.

	IN THAT the leader failed to disclose in his annual statement for the reporting period 2001-2002 his liability which led to his insolvency as declared by the National Court on 20 October 2004.

	THEREBY contravening Section 27(1)(b), 27(1)c), 27(1)(d), 27(2) and (27(5)(b) of the Constitution and Section 4(1)(h) and 4(6)(b) of the Organic Law on the Duties and Responsibilities of Leadership.

Count 5:	THAT the leader on the 14th day of August 2003 conducted himself in his public life and in his association with other persons in such a way that he:

	(a) demeaned the leadership positions or offices that he held; and (b) allowed his public or official integrity and his personal integrity to be called into question; and (c) endangered and diminished respect for and confidence in the integrity of government in Papua new Guinea; (d) engaged in an activity that might be expected to give rise to doubt in the public mind as to whether he was carrying out his duties as a leader; and (e) failed to honestly declare his liability to the Ombudsman Commission when he was obliged to, thereby knowingly, recklessly or negligently giving a statement that was false, misleading or incomplete in a material particular.

	IN THAT the leader failed to disclose in his annual statement for the reporting period 2002-2003 his liability which led to his insolvency as declared by the National Court on 20th October 2004.

	THEREBY contravening Sections 27(1)(b), 27(1)(c), 27(1)(d), 27(2) and 27(5)(b) of the Constitution and Section 4(1)(h) and 4(6)(b) of the Organic Law on the Duties and Responsibilities of Leadership.

Count 6:	THAT the leader on the 11th day of November 2004 conducted himself in his public life and in his association with other persons in such a way that he:

	(f) demeaned the leadership positions or offices that he held; and (g) allowed his public or official integrity and his personal integrity to be called into question; and (h) endangered and diminished respect for an confidence in the integrity of government in Papua new Guinea. (i) Engaged in an activity that might be expected to give rise to doubt in the public mind as to whether he was carrying out his duties as a leader; and (j) Failed to honestly declare his liability to the Ombudsman Commission when he was obliged to, thereby knowingly, recklessly or negligently giving a statement that was false, misleading or incomplete in a material particular.

	IN THAT the leader failed to disclose in his annual statement for the reporting period 2003-2004 his liability which led to his insolvency as declared by the National Court on 20 October 2004.

	THEREBY contravening Sections 27(1)(b), 27(1)(c), 27(1)(d), 27(2) and 27(5)(b) of the Constitution and Section 4(1)(h) and 4(6)(b) of the Organic Law on the Duties and Responsibilities of Leadership."

21. In all four allegations against the Leader, he is charged under the Constitution section 27 and OLDRL s 4, s 5 and s13 as set out in the following passages and paragraphs. Section 27 (1) and (2) create the offence of misconduct in office whereas s 4, s5 and s13 of OLDRL are laws allegedly breached by the Leader thereby constituting the offence stipulated under section 27 (1) of the Constitution. Further breaches are also alleged in respect of other subordinate laws and regulations amounting to misconduct under section 27(1) and (2) are also set out in full hereafter.

(1) A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not—

(a) to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or

(c) to allow his public or official integrity, or his personal integrity, to be called into question; or

(d) to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.

(2) In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).

(a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and

(b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt.

(4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may, subject to this Division and to any Organic Law made for the purposes of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.

(a) is convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or

(b) fails to comply with a direction under Subsection (4) or fails to carry out the obligations imposed by Subsections (1), (2) and (3),

23. In respect of Count 4, 5 and 6, in addition to section 27 of the Constitution, the charges against the Leader are founded under section 4(1)(h) and 4(6)(b) of OLDRL which provide as follows:

as the case may be, and at least once in every period of 12 months while he remains such a person, give to the Ombudsman Commission a statement to the best of his knowledge setting out, in respect separately of himself and his spouse and any of his children under voting age—

(a) the total assets including money, personal property and real property in the possession or under the control of each of them; and

(b) the total income received by each of them during the period to which the statement relates and the source of each of those incomes; and

(c) the business connexions of each of them (including any business connexions with unincorporated profit-seeking organizations); and

(d) the directorships or other offices in a corporation or an unincorporated profit-seeking organization held by each of them; and

(e) all business transactions entered into by each of them (including transactions with unincorporated profit-seeking organizations) during the period to which the statement relates; and

(f) all gifts received by them (other than gifts received in the normal course of events from close relatives) during the period to which the statement relates and the value of those gifts; and

(g) the assets acquired by each of them during the period to which the statement relates; and

(h) the liabilities incurred or discharged by each of them during the period to which the statement relates, and the amount of each such liability.

(3) In the case of sundries and minor items it is sufficient if the declaration shows their general natures and approximate amounts or values.

(4) The Ombudsman Commission or other authority may, by notice in writing to a person to whom this Law applies, require him to explain or give details or further details of any matters relating to the statement including—

(c) discrepancies in the statement or between it and other statements or other information available to the Ombudsman Commission or other authority.

(5) Statements and information given to the Ombudsman Commission or other authority under this section shall not be revealed to any person except—

(b) for the purpose of proceedings or possible proceedings under Section 27; or

(a) fails without reasonable excuse (the burden of proof of which is upon him) to give to the Ombudsman Commission or other authority a statement in accordance with Subsection (1), or to give any explanation or details required under Subsection (4); or

(b) knowingly, recklessly or negligently gives such a statement or explanation, or any such details, that is or are false, misleading or incomplete in a material particular,

(1) A person to whom this Law applies who, except as specifically authorized by law, directly or indirectly asks for or accepts, on behalf of himself or an associate, any benefit in relation to any action (past, present or future) in the course of his duties, or in the course of or by reason of his official position, is guilty of misconduct in office.

(2) Subsection (1) extends to the case of a person to whom this Law applies who, except in the course of and for the purpose of his official duties or his official position, uses or allows his name or his official position to be used for the benefit of himself or any other person.

(a) intentionally applies any money forming part of any fund under the control of Papua New Guinea to any purpose to which it cannot be lawfully be applied; or

26. We set out below the relevant laws allegedly breached by the leader thereby necessitating these charges to be laid by way of enforcement of these laws. These laws include Organic Law on Provincial Governments and Local Level Governments, in particular section 95A, Public Finances (Management) Act 1995, in particular section 117 of the Act, Guidelines for the District Support Grants and the Provincial Support Grants and the Salaries and Remuneration Commission Determinations, in particular Determination G97-03(a) (TRANSPORT ENTITLEMENT), G97-03, G97-03(1)-(7) relating to different categories of allowances.

27. In addition to section 27 of the Constitution, what is allegedly breached in Count 1 is the Salaries and Remuneration Commission Determinations, in particular those referred to above which we set out below:

1. Description	A Determination to provide for the use of State owned transport by certain leaders and to provide transport allowances and advances for other Leaders.
2. Recipients	As per the Schedule forming part of this Determination.
3. Benefits	As per the Schedule forming part of this Determination.
4. General Provisions	i) Advances
	Provided that the necessary funds have been appropriated in current budgets advances of allowances specified in the Schedule may be made available by administering authorities for the purpose of purchasing and/or maintaining Leaders’ vehicles, boats, aircraft or other approved conveyances provided that all such advances are made payable to the supplier of the goods or services concerned. Advances may not be made directly to a leader. The period of advance may not exceed 48 months or the unexpired portion of a Leaders’ term of office if this is less than 48 months. More than one advance may be made during a term of office. No advances may be made to elected Leaders until the period for appeals to the Court of disputed Returns has expired.
	Duty Exemptions Vehicles purchased by Leaders under this Determination are not exempted from duty.
	Vehicle Operating allowance Recipients of vehicle allowances will be paid an Operational allowance fortnightly with salary in accordance with the Schedule. The operational allowance is calculated to make provisions for fuel and lubricant purchases, repairs, service and maintenance, and annual registration. Third Party Insurance and Comprehensive Insurance, and replacement vehicle hire. Recipients are not permitted to take this allowance in advance when purchasing a vehicle.
	Recipients entitled to more than 1 allowance under the Schedule may pool the allowances together to meet total transport needs.
	Leaders in receipt of vehicle allowances under this Determination are prohibited from making any use of State owned vehicles in Port Moresby or in their own Electorates with the exception of the Prime Minister and Speaker. Leaders being provided with a State owned vehicle as a transitional benefit under Determination G97-20 or under the special provisions of this Determination are not entitled to vehicle allowances whilst using the State owned vehicle during the transitional period or the duration of the Court of Disputed Returns proceedings as the case may be. As vehicle allowance also include a component for the hire of replacement vehicles when a Leader’s vehicle is unserviceable administering authorities are prohibited from hiring private vehicles for use of Leaders as a charge to the State.

Entitlement A	State Owned Vehicle
	Use of a State owned vehicle on an unrestricted basis with all necessary fuel and maintenance requirement and a driver being provided by the administering authority. The authorizing authority for determination the appropriate level of vehicle shall rest with the respective administering authorities.
	Recipients
	Prime Minister (such vehicles as and where required anywhere in Papua New Guinea).
	Chief Justice – 1 vehicle in Port Moresby
	Speaker – 1 vehicle in Port Moresby. This entitlement shall be extended to his electorate whenever he is in the electorate.
	Leader of the Opposition – 1 vehicle in Port Moresby.
	Deputy Prime Minister – vehicle in Port Moresby
	Chief Ombudsman – 1 vehicle in Port Moresby
	Judges of the National Court – 1 vehicle in Province in which Judge is based or an allowance under Entitlement C.
	Commissioner of Police – 1 vehicle in Port Moresby.
\	Commander of Defence Force – 1 vehicle in Port Moresby
Entitlement B:	Private Vehicle Allowance
	Purchase Allowance An annual allowance of K48548 for the purchase of an appropriate vehicle. Full duty must be paid on the vehicle.
	Operational Allowance An allowance in accordance with Schedule G97-03/1 payable fortnightly with salary for the operation and maintenance of their vehicle. Advance payment of this allowance is not permitted.
	Driver’s Allowance An annual allowance of K4800 paid fortnightly to a driver. Advance payment of this allowance is not permitted and administering authorities are forbidden from providing drivers for private vehicles as a charge to the State.
	Recipients Prime Minister Chief Justice Speaker Leader of the Opposition Deputy Prime Minister Chief Ombudsman Deputy Chief Justice Chief Ombudsman Deputy Chief Justice Commissioner of Police Commander of Defence Force
Entitlement C:	Official Vehicle Allowance 1 (OVA 1)
	Purchase Allowance An annual allowance of K48548 for the purchase of an appropriate vehicle. Full duty must be paid on the vehicle. Operational Allowance An allowance in accordance with Schedule G97-03/1 payable fortnightly with salary for the operation and maintenance of their vehicle. Advance payment of this allowance is not permitted.
Entitlement G:	Electoral Vehicle Entitlements
	Purchase Allowance An annual allowance of K35210 for the purchase of an appropriate vehicle. Full duty must be paid on the vehicle.
	Operational Allowance An allowance in accordance with Schedule G97-03/6 payable fortnightly with salary for the operation and maintenance of their vehicle. Advance payment of this allowance is not permitted.
	Recipients Members of the National Parliament
Entitlement H:	Support Vehicle Entitlements
	Purchase Allowance An annual allowance of K12137 for the purchase of an appropriate vehicle. Full duty must be paid on the vehicle.
	Operational Allowance An allowance in accordance with Schedule G97-03/5 payable fortnightly with salary for the operation and maintenance of their vehicle. Advance payment of this allowance is not permitted.
	Recipients Prime Minister (5 vehicle allowance) Deputy Prime Minisiter (2 vehicle allowances) Leader of Opposition (2 vehicle allowances) Speaker (2 vehicle allowances) Minister of State (1 vehicle allowance) Deputy Leader of Opposition (1 vehicle allowance) Deputy Speaker (1 vehicle allowance) Provincial Governors (1 vehicle allowance)

2) Driver’s allowance must be paid fortnightly directly to the driver. It may not be paid to the Leader or be paid in advance.

2) The special provisions of this Determination restrict advances in cases where the election of Leaders is being challenged in the Court of Disputed Returns.

Note: 1) Operational Allowance to be paid fortnightly. No advance permitted.

2) The special provisions of this Determination restrict advances in cases where the election of Leaders is being challenged in the Court of Disputed Returns.

In respect of Counts 2 and 3, in addition to section 27 of the Constitution, the Leader allegedly breached the Office of Rural Development Guidelines which set out the following:

GUIDELINES FOR THE DISTRICT SUPPORT GRANTS
AND THE PROVINCIAL SUPPORT GRANTS
Budgeted as
THE RURAL ACTION PROGRAMME FUND
(RAPF)

The Rural Action Programme Fund (RAPF) is an annual appropriation in the national budget as required under the Organic Law On Provincial and Local Level Governments (Amendment No. 7) Law, Section 95A relating to District Support Grants (DSG) and Section 95B that relate to the Provincial Support Grants (PSG).

District Support Grants are made available each year to each Open Electorate. Similarly, Provincial Support Grants are made available to each Provincial Electorate.

Commencing in 1999, the annual allocation for DSG will be K500,000.00, one half of which will be made to the Joint District Planning and Budget Priorities Committee (JPP&BPC) and the other half will be made to the Member representing the Open Electorate.

Likewise, the annual allocation for PSG will be K500,000.00, one half of which will be made to the Joint Provincial Planning and Budget Priorities Committee (JPP&BPC) and the other half will be made to the member representing the provincial electorate.

District and Provincial Support Grants form part of the development grants and therefore are subject to specific requirement of the Organic Law on Provincial and Local Level Governments.

To fund projects that relate to the maintenance and construction of schools, hospitals, aid posts, and office buildings.

To fund projects that relate to community development and welfare such as community halls, libraries, purchase of equipment and materials and related.

In principle, there are no restrictions on the types of projects that can be funded under the RAP so long as the funds are channeled into areas of social, economic and infrastructure.

Project proposals may be initiated by any member of the JDP&BPC, Churches, Community Groups, Youth and Gender Groups and NGOs. Any group seeking DSG or PSG project funding must be registered or be a recognized institution or a group recognized by the member.

Project proposals must address the needs of the village, be implemented within twelve months and be located in the member’s electorate.

All project proposals must be submitted using the standard format PROJECT PROPOSAL FORM. Project Proposals for funding under DSG must fill DSG1-FORM and those for funding under PSG should fill PSG-2 FORM and have them submitted to the JDP&BPC and JPP&BPC respectively. All project proposals must be submitted no later than the end of March.

Project proposals must be linked to National, Provincial and District development priorities. Projects must also include or be part of the District Five Year Development Plan.

DSG and PSG funded projects will be appraised and approved by the JDP&BPC respectively.

Approved project submissions should have attached FF3 Forms and quotes where required, and be sent to the Rural Development Regional Office for recording and on-forwarding to the Rural Development Headquarter.

Funds appropriated for the Rural Action Programme will be administered by the Office of Rural Development. At the beginning of each quarter the Office of Rural Development will prepare and submit cash flow estimates to the Department of Treasury and Planning which will then issue Warrants of Authorities.

On receipt of the approved projects, the Office of Rural Development will issue CFCs to the Provincial or District Treasurers. Provincial or District Treasurers will then issue cheques which should then be presented by the Member to the recipients.

The Procurement Procedures of goods, works and services for the projects which will be funded under the Rural Action Programme must comply with Section 117 and any other relevant provisions of the Public Finance and Management Act of 1995.

There will be no quotations required. However, it is advisable to obtain some indication of costs (if possible) which should be attached to the Project Proposal Form (DSG-1 FORM or PSG-2 FORM).

For Projects costing within this range, three verbal quotations will be required. The quotations must be recorded and copies be attached to the Project Proposal Form (DSG-1 FORM or PSG-2 FORM).

For Projects costing within this rage, three written quotations will be required. Quotations must be recorded in a register and be attached to the Project Proposal Form (DSG-1 FORM or PSG-2 FORM).

For projects costing above K100,000 open tender will be required to be called. The Project Proposal Form (DSG-1 FORM or PSG-2 FORM) must be completed and submitted.

It is important that consultation should be maintained with the Provincial Supply and Tenders Board or the Permanent Central Supply and Tenders Board.

Recipients of RAP Funds will be required to acquit any allocated project funds using the standard acquisition form."

The strict observance of these Guidelines is the statutory requirement of Public Finances (Management) Act 1997 issued in the Circular Instruction pursuant to section 117 of the Act and section 95A of the Organic Law on Provincial and Local Level Governments. Section 95A provides:

(1) For each year the National Government shall out of monies lawfully available for the purpose, make a District Support Grant in respect of each open electorate—

(a) one half of which shall be made to the Joint District Planning and Budget Priorities Committee in the open electorate, for the purpose of funding—

(b) one half of which shall be made to the Member representing the open electorate to be used in accordance with District Support Grant Guidelines issued under Subsection (7).

(2) The minimum amount of District Support Grant shall not be less than K300,00.00 per Open Electorate and shall be determined by the National Economic and Fiscal Commission in consultation with the Departmental Head of the Department responsible for finance matters and the Departmental Head of the Department responsible for planning matters.

(3) In determining the amount to which Subsection (1) and (2) refer, the National Economic and Fiscal Commission shall take into consideration the details of other grants made available to the Provincial Governments and Local-level Governments.

(4) The minimum amount of the District Support Grant for each year for each open electorate shall be determined by the National Executive Council but shall be not less than—

(5) The National Government shall, within the first month of each quarter of each fiscal year, make a payment of all monies due for the purposes of the District Support Grant for that quarter to the Joint District Planning and Budget Priorities Committee and to the Member representing the open electorate respectively.

(i) the Joint District Planning and Budget Priorities Committee, paid directly to that Committee by the District Treasury; and

(ii) the Member representing the open electorate, paid on his behalf in accordance with the District Support Grant Guidelines issued under Subsection (7).

(7) The National Executive Council shall, from time to time, issue District Support Grant Guidelines relating to the District Support Grant specifying—

(a) the purposes for which the portion of it payable under Subsection (3)(b) may be used; and

28. It was agreed at the beginning that all evidence will be reduced to affidavits and unless a witness was wanted for cross-examination, all such affidavits will be tendered unopposed. Consequently that was the procedure adopted when bringing evidence before the tribunal.

29. Statement of reasons or SOR for short is a bundle of documents compiled by the Commission and presented with the allegations as is required under the Constitution. In this case SOR comprised two thick volumes. The first one is called SOR which has 638 pages and the smaller one called MR PEP’S RESPONSE has 393 pages. Combined SOR has a total of 1,031 pages to read for purpose of this investigation. His Honour Kapi, DCJ (as he then was) in Timothy Bonga v Justice Maurice Sheehan [1997] PNGLR 452 referred to SOR as the Book of Exhibits. In our ruling on the objection to its admissibility into evidence in this proceeding, we described it as Bundle of Annexures or Attachments.

30. Leader’s Counsel objected to SOR becoming part of the prosecution’s evidence in this investigation on the basis that it was not a proper way to admit into evidence materials that were strictly inadmissible under the rules of evidence and many of which the leader was not aware of nor questioned on when he attended the Commission office while exercising his right to be heard. Counsel relied on the recent amendment to section 27(4) OLDRL that no longer gives the Ombudsman Commission free hand to place any evidentiary matter before the tribunal without regard to legal formalities and rules of evidence.

31. His Honour Kapi DCJ held in Bonga v Sheehan (supra) that SOR was not evidence. Prosecution cannot simply present the charges and tender the SOR and end of the story. This is what the court said:

"Where a leader contests the counts as in the present case, the statement of reasons with the exhibits cannot in any way constitute the evidence that is required to prove the counts. It was the duty of the Tribunal to enquire into the allegations and the Prosecution to call the evidence to prove the counts. The Tribunal fell into error when it expected the plaintiff to express a view about the evidence or to indicate whether he wished to cross examine any witnesses when there was no evidence put before it.

In my view, the decision not to call any evidence by the prosecutor as well as the failure by the Tribunal to conduct an inquiry into all the allegations in accordance with s. 29 of the OLDRL was fatal. The practical result of this failure is that there was no evidence put before the Tribunal to prove any of the counts. If no other evidence was brought before the Tribunal to support any of the counts, a verdict of guilty in respect of those counts would be unreasonable so as to exceed jurisdiction and that would render the verdicts a nullity."

32. We ruled that because the documents in the SOR were retrieved from the Commission’s file that the Commission obtained in the course of its investigation, we will admit it into evidence as it is in that bundled form as part of the business records of the Commission. However, none of those materials contained therein had any evidentiary value to it unless a witness identified it and it was tendered through that witness. We have affirmed the view of the National Court in Bonga v Sheehan (supra) that SOR is not evidence on which the strength of the prosecution case rests. Our ruling on the objection is attached to this decision as an appendix.

33. The prosecution called altogether six (6) witnesses. Their affidavits were tendered into evidence and marked as exhibits and they were cross-examined by counsel for the leader. It is not proposed that we set out the evidence of the witnesses in detail suffice that we will refer to them in our analysis of the totality of the evidence before the tribunal when discussing the issues inherent in the various charges against the leader.

34. It is however important at this point to at least identify the witnesses so that the material and precise application of their testimony to the issues in contention and the appropriate charge to which the witness’s evidence relates is appreciated.

35. The first witness of the prosecution was Nemo Yalo. He is Counsel to Ombudsman Commission and lead investigator in this case who perused the files on the leader and formulated the charges against the leader based on the documents now contained in the Statement of Reasons. His affidavit was marked exhibit 1 and is quite general in nature in which he makes references to the documents contained in SOR. The SOR comprising the two thick books which was tendered into evidence for the reasons given earlier through Nemo Yalo was marked as exhibit 2.

36. Next witness was Dennis Konu from the Bank of South Pacific Port Moresby branch who has worked as bank officer for 11 years and attached to the Fraud Audit & Special Investigations-Retail Bank since October 2006 as Risk Manager. He also swore an affidavit which is marked exhibit 7. His evidence was focused particularly on Count 3 especially on the banking procedure generally on trust accounts and in particular, the operation of Dei District Trust Account that was maintained in the bank’s Mt Hagen branch under trustee arrangement with the Leader. He recognized the leader’s signature according to the specimen signature card that the bank held of the leader as customer. The material value of his evidence was to show that the leader endorsed the encashment of the pay-cash cheques drawn on the Dei District Trust Account number 307-1000875210 maintained at the Mt Hagen Branch of BSP and to identify several transactions. His evidence was self-serving and undisputed by the leader.

37. Next prosecution witness was Peter Eapaea. He was the Director of Finance and Administration of Department of Health who was responsible for the finances of the Department and the Department’s fleet of vehicles and their management. He too swore an affidavit which was admitted into evidence marked as exhibit 3. In his affidavit he annexed fuel and service dockets allegedly used by the leader to obtain fuel and service of Department supplied support vehicle and for his official vehicle that he provided to the Ombudsman Commission on request. This evidence was relevant for the first count of double-dipping by the leader. The admissibility of the fuel and service dockets were strenuously opposed by the leader as new evidence that the leader was not shown and his response given prior to his referral and therefore offended principle of natural justice. We discuss this evidence in detail in the judgment. He was strongly cross-examined by the leader’s counsel. Generally, he was not an impressive witness in our view. Accountability and proper control of funds and assets of the Department of Health need to be tightened up at his level but discipline seems to be lacking.

Prosecution’s next witness was Jack Bagita. He is the Executive Officer to the Salaries and Remuneration Commission (SRC) and quite familiar with the SRC Determinations for the Members of Parliament. His evidence was basically on the Minister’s vehicle entitlements as stipulated in the Determinations which he summarized in paragraph 6 of his affidavit as follows:

His affidavit is marked exhibit 4. The relevant Schedules to the SRC Determinations that provide the above figures are in the judgment under heading Texts of Relevant and Applicable Laws.

In examination in chief and cross-examination Mr Bagita stressed that after 1997 Ministers who previously were supplied with Department vehicle as their support vehicle could no longer do that as this was abolished by the new Determinations. Ministers now had the benefit of full vehicles allowances as tabulated above.

The next prosecution witness was Renagi Kila whose evidence was relevant to Count 1. His affidavit is also in evidence and marked exhibit 5. He is the OIC of Members Emoluments Section in the National Parliament and who was familiar with the pay details of the leader. He annexed to his affidavit the pay slips of the leader of the period under investigation and which formed part of the SOR pp.344-375 that he provided to the Ombudsman Commission on request. As an example of what the leader was receiving fortnightly on pay date 18/9/02 the pay slip shows as his earnings the following:

There is no dispute on the evidence given by Mr Kila. His evidence is therefore self-serving.

Prosecution’s final witness was Paul Sai’i who also swore an affidavit which was accepted into evidence and marked as exhibit 6. He is the Director of the Office of Rural Development and a material witness for the prosecution in relation to Counts 2 and 3. in his affidavit he made references to the annexures in SOR pp.142, 143, 144, 153, 164, 165, 166, 341, 342, 376and 389 which relate to District Support Grants User Manual or Guidelines issued by his office and also explained the role his office played in this important task. His oral evidence when answering questions in cross-examination put by the leader’s counsel, he agreed that there was nothing wrong with the acquittals submitted by Dei JDP & BPC in respect of the funds that were the subject of the Commission’s inquiry in Counts 2 and 3. in fact he accepted the failure to comply with the guidelines as the fault of ORD and not that of the leader. We shall discuss this evidence fully in our judgment shortly.

The leader Melchior Pep also gave sworn evidence where he reaffirmed his denials on counts 1, 2 and 3 and gave explanations on counts 4, 5 and 6. We address his explanation in the judgment on penalty. His affidavit is before the tribunal marked as exhibit D2. The leader also called Dr. Nicholas Mann, Secretary for Health as his witness. Dr Mann also swore an affidavit which was admitted in evidence and marked as exhibit D1. Dr Mann’s evidence was concerning Count 1. Basically he said there was a standing practice in place for the Department to assist the Ministry like it always did in the past with previous Ministers and he was simply adhering to that. He said he saw the leader also use the vehicle from time to time. We will return to his evidence shortly. The leader also filed an affidavit sworn by Mr. Paul Mawa whose evidence was relevant to Counts 4, 5 and 6 to which the leader had pleaded guilty. His evidence is simply his explanation of the events concerning that matter from his perspective as lawyer acting for the leader during the period in question. Mr. Mawa’s affidavit was admitted into evidence by consent and marked exhibit D3 and he was not even cross-examined by the prosecution.

The standard to be applied in leadership prosecutions has been already settled in this jurisdiction and we adopt the submissions made by both counsel. It is higher than that of the civil standard which is on the balance of probability and below the criminal standard of proof beyond reasonable doubt.

As to the onus or burden of proof, while prosecution carries this burden at the outset as the initiator of the process of investigation of the leader or being the accuser, being logical reasoning, the prosecution itself is conducted in the nature of an investigation by the tribunal. The function of the tribunal as defined in the Constitution section 28(1)(g) is to investigate and determine any cases of alleged or suspected misconduct in office referred to it in accordance with the Organic Law.

"But it is a quasi - judicial tribunal and as such, it must act judicially and in compliance with the principles of natural justice, see s. 59 of the Constitution s. 27(4) of OLDRL. Also see in re James Eki Mopio [1981] PNGLR 416. It is not clear from the Constitution and OLDRL as to who bears the onus of proof but in relation to the standard of proof, it was decided by the Supreme Court in Re James Eki Mopio that the standard of proof is above the civil standard of proof which is on the balance of probabilities, but close to the criminal standard of proof, which is proof beyond reasonable doubt. The Supreme Court said at pp.420-421:

"In our view there is no absolute degree or standard of proof to be applied by the Leadership Tribunal. The Tribunal must be reasonably satisfied of the truth of the allegations or denials. In reaching such a conclusion it must give full weight to the gravity of a charge of misconduct in office by a person subject to the Leadership Code, the adverse consequences which follow and of the duty to act judicially and in compliance with the principles of natural justice. In practical terms the standard is not as high as the criminal proof beyond reasonable doubt but in our opinion, the very nature of the offence of misconduct in office created by the Constitution and the Organic Law on the Duties and Responsibilities of Leadership, will require a higher standard of proof than that ordinarily applicable in civil cases, namely proof on a balance of preponderance of probabilities. In matters involving accusations amounting to criminal conduct, the standard must be close to that applicable in a criminal trial.

In relation to the duty to act judicially in terms of proof of facts, the Supreme Court adopted principles enunciated in various common law cases, which state that the tribunal’s decision must be based on reliable, clear and convincing evidence or material, from which findings of fact and reasonable inferences can be drawn therefrom, and not based on mere suspicion or speculations."

Referring to that same passage quoted from the Supreme Court judgment in Eki Mopio’s[1] case cited above, the Leadership Tribunal of Michael Nali[2] made these observations when commenting on the standard of proof:

"The reason why such a high standard of proof is required or applied by the Leadership Tribunals is obvious; the consequences of guilty finding by the Tribunal are grave, in that the Tribunal can recommend dismissal from office against the leader, pursuant to s. 27 (5) of the Organic Law. Consequence of which is that the leader will lose not only his position and status which in the instant case is as the member of Parliament and of the Southern Highlands Provincial Assembly, but he will lose all the privileges attached to those positions and further more, he will not be eligible to hold any leadership position for the next three years."

This is why it is important that, given the grave consequences associated with these leadership prosecutions where a leader is found to be at fault or in the wrong to warrant dismissal from office, it behoves prosecution to bring forward reliable and credible evidence and not mere conjectures or speculations. Often associated with these prosecutions are malicious and scandalous accusations of all manner of impropriety and corruption, dishonesty and character assassination of all kinds that can leave a man broken and devastated. And this can be quite daunting and irreconcilable injury can result where a leader is absolved by the tribunal after due inquiry and cleared of all allegations. This must also be born in mind as well when the decision is first made to prosecute a leader by ensuring that there is solid, reliable and credible evidence to proceed.

One approach to analyzing the facts and the issue or issues in each count is as proposed by counsel for the leader and we adopt that procedure. By examining each allegation individually and identifying all the issues pertaining to each, at least we can be confident and reassured that we are on the right track and be happy with the final outcome.

Count 1 – Double-Dipping of Transport Allowances under SRC Determinations –G97-03

We start firstly with Count or allegation one. This is the count where the prosecution alleged that between 7th August 2002 and 29th October 2003 Mr Pep whilst a Minister and already entitled to various vehicle allowances under the SRC Determinations namely Schedule G97-.. and already benefiting from that entitlement, received double benefits by having a State vehicle allocated to him 24 hours and fully serviced by the Department of Health and at the same time refueled his official vehicle at the expense of the Department of Health when he was also already receiving allowance for his official vehicle fortnightly with his pay.

The issues to be addressed are as submitted by Mr Mawa for the leader, which are:

(i) Whether or not the vehicle ZGB-221 is provided to the Leader under the SRC Determinations?

There is overwhelming evidence that the motor vehicle Toyota Land cruiser Ten Seater ZGB.221 was allocated to the Office of the Health Ministry on the request of the Minister’s First Secretary through the office of the Departmental Secretary Dr Nicholas Mann. This request was made by letter to Dr Mann who immediately directed that this particular vehicle be released to the Ministry and to be kept by the First Secretary fulltime. All expenses associated with this vehicle, service and fuel costs were met by the Department on presentation of dockets kept by the driver who, in turn, was issued with invoice based on which the Department paid.

There is also overwhelming evidence that the Secretary Dr. Nicholas Mann felt compelled to make a vehicle available as soon as possible to the Ministry, not because he was pressured by the Leader to do so as we were asked by the prosecution to find, but he was trying to comply with the standing practice or arrangement where the Department made available a vehicle to the Office of the Minister which vehicle was often retained by the staff of the Minister, namely the First Secretary, as it always did in the past. There is undisputed evidence that the practice had become endemic and entrenched in the system that it was taken to be automatic entitlement to the Ministry. Previous Ministers who benefited from this arrangement were Mr Tommy Tomscoll and Mr Ludger Mond. The practice needs to be abolished forthwith.

On this evidence, we are not prepared to find that the vehicle was allocated to the leader personally as his support vehicle for purposes of the SRC Determinations. This view is supported and strengthened by the subsequent enactment of the law that entitles Ministerial support staff to be supplied with vehicle on 24 hours within that period of time this breach is alleged. The Official Personal Staff Act (Chapter 383) was enacted in 2003 and came into force on 5th February 2003. Under this Act by Prime Ministerial Directive on 1st August 2003 a number of Determinations were decreed enabling personal staff of Prime Minister and Ministers benefits in terms of allowances and vehicles. Determination number 12. USE OF GOVERNMENT VEHICLES provides:

"(1) The Chief of Staff shall be entitled to unrestricted use of a government vehicle or, at his discretion, an allowance in lieu as provided under the relevant Public Service General Orders.

(2) The First Secretaries of Ministers shall be custodians of a fully serviced support vehicle each to be provided by the respective Departments to the Office of the Minister."

The Official Personal Staff Act also repealed the earlier Ministerial Personal Staff Act.

Supposing we accept the prosecution submission to be correct that allocation of the vehicle ZGB.221 to the Minister’s First Secretary or to the Office of the Minister is the same as providing support vehicle to the Minister personally, we find it strange that a practice once prevailed that the relevant Departments supported its respective Ministry with a fully funded support vehicle which the Department of Health continued to retain either consciously or otherwise, the Official Personal Staff Act passed in 2003 almost settles the issue once and for all that Ministerial support staff vehicle need not be confused with support vehicle referred to in the SRC Determinations.

We accept the evidence of Jack Bagita who is the executive officer to Salaries and Remuneration Commission who said that since 1997, the Ministers could not get support vehicle directly from the Department as they were paid allowances directly to purchase support vehicles as well as paid operational costs allowances. Mr Bagita was giving evidence of his opinion or belief as far as the Ministers were concerned in their entitlements under the SRC Determinations. He was not an expert on Public Service generally and his evidence did not concern Ministerial support staff. In fact it was either him or another witness who opined that if the vehicle was allocated to the First Secretary and not the Minister, then it should be the First Secretary who must be before the Tribunal.

We are satisfied that the enactment of the Official Personal Staff Act in 2003 is a reinforcement of the view that the allocation of the vehicle ZGB.221 to the First Secretary to Minister Pep was in accordance with the general Public Service practice then existed and understood which was meant to be outside the scheme of leaders entitlement under the SRC Determinations and therefore the two must be carefully distinguished and not confused with the other.

If we are wrong in reaching this conclusion, then there will be a whole string of persons who are subject to this same law applying to the leaders are also guilty of misconduct in office for knowingly and consciously supplying benefit to the leader when he already was receiving those benefits such as Secretary Dr. Nicholas Mann and Director Finance and Administration, Department of Health, Peter Eapaea. They allowed it, either consciously or unconsciously, so why should they be exempt from leadership prosecution?

On this issue, we conclude that the vehicle ZGB.221 was allocated to the First Secretary to Minister as an entitlement to the Ministry or Office of the Minister to be retained by him as its custodian and having exclusive use of it 24 hours as Dr. Mann put it ‘for efficient and effective operation of the Ministry’. That was the understanding in which it was requested for by the First Secretary and that was the understanding in which it was allocated. The Minister may have driven it from time to time but unless some specific duration in time is given, we are not inclined to make any adverse findings against the leader on occasional usages of the vehicle to imply guilt or culpability. Again we are not at all sure whether using such term or word as guilt or guilty is an appropriate usage of such words generally associated with offences that are criminal in nature and it begs the question as to whether breaches of the nature such as in this allegation without criminal sanctions complimenting their breach do necessarily justify criminal intent and hence facilitate the conclusion of misconduct as envisaged by section 27(1)(a)-(d) and (2) of the Constitution by a leader? If no enforcement procedures are in place to ensure strict compliance, by what statutory mandate does Ombudsman Commission derive its power to prosecute those who violate these Determinations if it is not the State regulatory body that polices this piece of subsidiary legislation? We think this question needs to be closely examined and determined by an appropriate forum. And the same question will be raised subsequently in the next two allegations or counts which we will be addressing in respect of the breaches of ORD-DSG Guidelines.

Technically, a Minister maybe said to be double-dipping if he is drawing his entitlement under the SRC Determination while his office is supported by the Department according to the scheme of arrangements in existence? Is it an offence known to law to obtain double benefit? When the SRC Determination permits or authorizes double–dipping by some leaders such as the Prime Minister, the Speaker, the Chief Justice and so on to be accorded State provided houses fully maintained and at the same time entitles them to collect their full housing allowances which other leaders are prohibited from doing, or entitles them to have 24 hours official vehcle with Government number plates without even losing their official vehicle with private number plate or allowance in lieu, how can double-dipping be an offence criminal or otherwise to some leaders and not to others. This is classical example, if not perpetuation of one law for the big men and another law for the rest. The same act or omission is not an offence to one category of leaders but when attributed to others it is a prosecutable infringement which can have a leader dismissed from office. That is not the kind of policy or notion that must be encouraged.

Firstly, we agree with the leader’s counsel’s submissions that this evidence is not before this tribunal in a correct and proper manner. We allowed it in as part of the records that the Ombudsman Commission kept in its office obtained during the course of its investigation. However, nobody claimed ownership of them during the hearing except Peter Eapaea who recognized them as those that the drivers of departmental fleet of vehicles carried and used to refuel its vehicles from a designated service station. No statements were obtained from any of those drivers or from the suppliers. The dockets do not show the driver’s name and not even signed. The officer from the Health Department who authorized the requisitions was not even called to testify as to who the drivers were who refueled the vehicle BAL.544 on the dates stated in those 13 dockets set out in tabular form at p. 493 SOR commencing from October 2002 till December 2003 which incurred a total cost of K790.

The recent amendment to section 27(4) OLDRL was passed to avoid this precise nature and manner of admission of evidence. Therefore while the evidence is before us, we give no weight to it as we are not satisfied of their probative value, reliability and credibility without more or further evidence from those who had knowledge of them. It would not be fair to crucify a leader on such evidence which does not conform to the notion or principles of natural justice. We make this observation in the light of the submissions by counsel for the leader that these dockets were never produced to the leader during his interview with the Ombudsman Commission and surprisingly it is now relied upon in this proceeding. There is no such thing as trial by ambush in a democratic society that observes due process and natural justice as the cornerstone of its foundation or pillar of strength and survival. There can be no fair trial where the leader has not been duly made aware of evidence that was going to be used against him at the hearing.

On the facts presented before the tribunal and as analysed by us, we are unable to be satisfied on the required standard of proof that the leader had breached the SRC Determination or can be held liable for ‘double-dipping’, whatever that terminology means in law for purposes of the Leadership Code under Division 2 section 26 of the Constitution. Under section 28 (Further provisions) of the Constitution under subsection (1)(d) an Organic Law may prescribe specific acts that constitute misconduct in office and also create offences (including offences by persons to whom this Division applies and offences by other persons) for purposes, we presume, of prosecution under this part of the Constitution. This is where OLDRL comes into play and we note that the leader in this case is charged under section 5(1) OLDRL in addition to all those string of offences stipulated in section 27 of the Constitution. We cited section 5 OLDRL earlier in the judgment but for purposes of clarity we restate what it says:

If we take this section by its catch-phrase or heading ‘use of office for personal benefit’, at least some answer rises in the horizon as to where or how this term double-dipping came to find itself in the language of the law on leadership prosecutions. On the other hand, it is arguable whether that was the intention of the legislature at all when viewed from the perspective of the SRC Determinations that has no policing and enforcement mechanisms in place to prosecute those who violate it.

In the context of this case as it was pursued, and in the way the evidence before us was analysed, section 5(1) is not applicable to the leader because it is referring to the leader asking either directly or indirectly, on behalf of himself or an associate, any benefit in relation to any action (past, present or future) in the course of his duties, or in the course of or by reason of his official position. It connotes an evil meaning, a fraudulent intention such as asking for a benefit in return for something he was or is or will be capable of reciprocating to the satisfaction of the giver of the benefit, while he was or is in position of power. We are unable to see how this law can apply to this scenario before us.

By the same token we are unable to see how subsection (2) can apply in this given scenario when there is another law that authorizes ministerial support staff to be accorded the benefit of a motor vehicle without any specific provision excluding application of SRC Determination in the scheme of things as they are. There are some obvious contradictions that need further and elaborate scrutiny by appropriate authority to clarify what they mean.

In the final analysis, for the reasons given, we are unable to find that the leader conducted himself improperly or in a manner unbecoming of him as leader in his public life and in his associations with other persons where he:

We deal now with Count 2. The allegation in this count is that between 20th March 2003 and 28th May 2003 the leader, as Chairman of Dei Joint District Planning and Budgetary Priority Committee failed to comply with the Office of Rural Development (ORD) guidelines and requirements in the approval, selection and tender process concerning the awarding of a contract to Wellcos Engineering Ltd. The subject road is in the leader’s district or electorate and called Eng-Muglamp Road which is a major road access for some 11,000 people to reach the markets to sell their produce. In simplest terms, it concerns awarding of a road contract worth K250,000.00 initially, but which blew-out to eventually exceeding K300,000.00, to a road construction company called Wellcos Engineering Ltd without complying with RDB Guidelines to request for public tender. That is the allegation. The Minister, as the leader and Chairman of the Joint District Planning and Budget Priority Committee of Dei District should have complied with the guidelines by calling for public tender which he did not do.

Of course the leader’s response was that they did by placing notices on the public notice boards along the side of the road. Whether that fulfills the requirement of public tendering is another issue that was not fully canvassed although we understand Mr. Kelly for the prosecution to argue that it did not comply with the guideline at all which means effectively there was no public tender at all. Even then, he submitted, no copies of such advertisements were produced as evidence of public tendering as claimed by the leader. But leaving aside the leader’s response, the questions that must be answered is, given that strict compliance with public tender procedures is quite a technical one that requires technical people to deal with them, is the leader whose only concern is to listen to the cry of his people as the saying goes and do whatever he can within the law to answer their cries, must he personally fulfill those requirements? He is not a person well informed in these technical matters such as Bernard Hagoria[3] who was a qualified accountant and who once held a position of Deputy Secretary in the Department of East Sepik and someone very well familiar with the Public Finance Management matters.

There is no question that the road was substantially completed to the value of the money expended as acquittal documents forwarded to ORD clearly show and which the relevant office was quite satisfied with following inspection subsequently. This is a case where the end or final result did not justify the means according to the charge preferred against the leader.

In addressing this allegation, once again we agree with the leader’s counsel’s submission that the issues to be determined are:

(i) Whether the Leader should be held responsible in ensuring Project Proposal Documents are in order for submission for funding under the District Support Grants ("DSG") when the DSG Guidelines clearly place the responsibility on ORD?

(ii) Whether an over-sight on the part of ORD in ensuring that Project Proposal Document complies with the DSG Guidelines should hold the Leader responsible for ORD’s over-sight.

We simply cannot see how the prosecution can go past the Office of Rural Development and insist that the leader must be held accountable when the failure fell squarely on the relevant office which unequivocally accepted the responsibility for what had happened. The Standard Requirements for Project Documentation imposes this responsibility squarely on ORD where it says:

4.1 The Office of Rural Development shall be responsible for overseeing the implementation of the RDP funded infrastructure projects as follows:

4.1.1 The Office of Rural Development through the Regional Office and District ORD offices shall be responsible for coordinating and overseeing efficient implementation of Rural Development projects.

4.1.2 The ORD Regional and District Offices shall ensure appropriate project documentation including scope of works and Bill of Quantities are completed before being submitted to ORD-Headquarters for approval.

4.1.3 Once ORDPAC has approved the project, shall advise Regional and District Rural Development Office.’

There is overwhelming evidence that the failure to conform to the guidelines was not the leader’s doing. Apart from ORD District Office ensuring compliance of these tender requirements, ORD did not make available these documents to the leader upon his election and in his oral testimony before the tribunal, Mr Paul Saii, acting Director of Office of Rural Development admitted this. In the letter he wrote to the leader under the letterhead of DEPARTMENT OF NATIONAL PLANNING AND RURAL DEVELOPMENT dated 20th October 2003 he made no secret of that. That letter reads in parts as follows:

"...Firstly, I must sincerely apologise for the Office’s failure to you or to your office a copy of the District Support Grant (DSG) Guidelines soon after your election.

To refurnish you on the requirements for expending this public fund, I attach here a copy of the guidelines for your easy reference.

Secondly, I further apologise for the Office’s failure to screen your JDP & BPC’s meeting minutes and resolutions, as it is our responsibility to recommend for rectification any resolution passed that is in breach of the official DSG guidelines.

This Office had allowed for the cheque of K250,000 being non-discretionary component of your DSG, to be processed and paid to Wellcos Engineering Ltd for the maintenance of Eng-Muglamp Road on the understanding that all DSG guidelines have been adhered to by the JDP & BPC.

...Finally, I sincerely apologise for the inconvenience caused to your office and I wish to assure you that this Office totally supports all projects that foster Rural Development and poverty alleviation.

It is worth mentioning here that the letter was copied to the Ombudsman Commission which means that it was written at the time of or for purposes in connection with this investigation and clearly placing the Ombudsman Commission on notice that ORD was at fault, and not the leader. This letter coupled with the clear demarcation of responsibility for strict adherence of the guidelines contained in the ORD Manual for the use of these District Support Grants, it was crystal clear that the leader was not responsible for the documentation required for public tendering.

In fact SOR contains pages and pages of documents of minutes, project bid, scope, letters, minutes and reports as part of the acquittals of this project which was undertaken and completed in transparent and open manner, leaving absolutely no room for suspicion at all. Everything was above board. There is no reason to suggest nor believe that the leader personally benefited through some under-hand dealing in awarding this contract to Wellcos Engineering Ltd without public tender.

The submission from the acting Public Prosecutor is that what the Office of Rural Development says now is irrelevant or immaterial. It must take cognizant of what is in the SOR and the Ombudsman Commission observation. We quote the relevant passage from the counsel’s submission:

"The Commission notes the ORD’s admission of not properly advising Mr Pep and his JDP&BPC. It is submitted this is of no consequence. Mr Pep and his JDP&BPC are obliged to apply the public funds in accordance with the law and the relevant guidelines. In this regard the Acting Public Prosecutor submits the oral evidence of Paul Sai-I where he contended there had been adherence to the guidelines is clearly incorrect and should be rejected.

The Tribunals attention is drawn to S/R 16 and the Ombudsman Commission observation that the scope of works was changed along the way and the value of the contract increased to over K300,000.00 as the work progressed. This is highly irregular. Proper tendering and entering into formal contract could have prevented this. This is one of the prime reasons as to why the guidelines should be adhered to when the spending of public funds is involved.

The Prosecution notes that Mr Pep has submitted his acquittal for 2003 DSG funds to ORD. It further notes the ORD’s acknowledgement of the acquittals and its statement that the acquittal is consistent with the guidelines and procedures.

The ORD’s assessment of Mr Pep’s 2003 DSG acquittal contradicts its own statements made in a letter dated 20 October 2003 written to the Ombudsman Commission. In that letter Mr Paul Saii, Acting Deputy Secretary, ORD states that Mr Pep has not provided the following:

It appears that Mr Saii’s statement in his letter of 20 June 2004 that Mr Pep’s acquittal is consistent with the guidelines and procedures is highly questionable and for the above reasons should be rejected."

We find the prosecution’s submission extraordinary, let alone unhelpful, in that if we reject the evidence of Mr. Saii who is the only person qualified to assist the tribunal with information as to what happened, being the person to whom the necessary documentation for the project completion were forwarded to by the Dei JDP&BPC on behalf of the leader, we have no evidence to make any finding in respect of this count on a standard which is close to that of criminal standard of proof. We cannot base our findings on the Commission’s observations on what it concluded from its own investigation, that is not evidence. This tribunal is not a rubber stamp for the Ombudsman Commission. It is a quasi-judicial body which must investigate and determine as the Constitution stipulates (s.28(1)) and come up with its own independent findings that have been arrived at in accordance with the rules of evidence and the Evidence Act observing the principles of natural justice. This is a very high calling for the tribunal and which has been reinforced by the recent amendment to the Organic Law (OLDRL) section 27(4) that previously gave Ombudsman Commission open-handed power to bring in evidence nilly-willy or as it saw fit without regard to strict rules of evidence. That era is now gone.

We are somewhat uncertain whether the Ombudsman Commission can go beyond the Office of Rural Development to prosecute the leader when all the evidence pointed not to the leader but to ORD for the failure. On the other hand, all documentation completed in support of the project and the minutes of various meetings and resolutions passed by the RDP&BPC that approved this project for funding to be paid to this particular contractor showed that it was not Mr. Pep who made these decisions. All these decisions were made by honest, respectable and dedicated people holding various responsible offices in the District as members of this committee with Mr Pep as the Chairman by virtue of being the elected member of the project electorate made the decision, a collective responsibility and a collective decision. Need he alone be held responsible for any repercussions flowing from it?

Consequently, we are unable to find that between 20th March 2003 and 28th May 2003 the leader, conducted himself in his public life and in association with other persons in any way or manner that:

We are content to accept the evidence before us that as long as there is no evidence of under-hand dealings and that the contractor delivered the finished product of the project, which is where the buck stops. After all the people are happy, the road is completed, irrespective of how much ultimately it cost to complete, that is some development in poverty alleviation. This charge against the leader has nothing to do with the blow-out in the contract award. Having a good road access to the markets is an objective of these District Support Grants and this is where the money was spent.

Count 3 – Applying K79,100.00 of DSG Discretionary funds in Cash Cheques contrary to law

Count 3 is similar to Count 2. It is all about the leader’s disbursements of the discretionary component of his DSG funds through the District JDP&BPC which the prosecution says was improper. The impropriety of the disbursements as is alleged is that as the money in the bank was trust money, he should not have authorized for it to be cashed. This is the simplest way to comprehend this allegation.

The background to this allegation is that the leader opened a trust account with Papua New Guinea Banking Corporation (now Bank of South Pacific) under the name of Dei District Trust Account with himself as trustee. A total of K80,000.00 was deposited into this account from the discretionary component of his DSG money. The account was opened in Mt. Hagen branch of PNGBC (now BSP) and given account number 307-1000875210. On 22nd April 2003 according to the date on the instrument headed DELEGATION OF POWER BY TRUSTEE completed at the Mt. Hagen office of the Bank, five other signatories were authorized to transact on this account. There is no suggestion that this was improper and Mr Denis Konu Risk Manager of BSP was not asked if the practice maintained was unsound or risky in any way. Over a period of time between 15th July 2003 and 18th September, 2003 in a spate of two months, a total of K79,100.00 was withdrawn involving eight separate transactions, the break-up of which is tabulated below:

The prosecution claimed that the leader applied these monies for his own use and to that of his cronies or associates and failed to apply the funds towards the development of his electorate. Counsel for the prosecution submitted that the leader must be held accountable for the resolutions passed by the JDP&BPC Sub-Committee On Small Projects and the cash payments made contrary to the DSG Guidelines. We quote from counsel’s written argument at p.17:

"The oral and documentary evidence is quite clear that the cash cheques were not signed by the leader. It is submitted that this does not matter.

The leader’s response is that it was his JDP&BPC’s sub-committee that resolved to apply the funds and subsequently made cash payments.

Clearly the leader had full knowledge of the JDP&BPC resolutions and the subsequent cash payments. Notations on copies of each of the cash cheque clearly indicate that he authorised or acquiesced to such cash payment to purposes that the guidelines identify as ineligible."

There is no dispute that the leader had full knowledge of the cheques being presented for cash payment, he actually authorized those payments although he did not sign them.

We do not share the same view as the prosecution where it is stated that it did not matter that the leader did not sign the cheques in question. In fact it did and does matter great deal which the prosecution completely missed the significance of this salient aspect in the entire chain of transaction that this tribunal is concerned with. The prosecution attitude reflected an already pre-fixed or closed mind with which it proceeded with this case, not based on credible and reliable evidence to be tendered at the hearing, but on the observations of the internal investigations made by the Ombudsman Commission. However if the prosecution kept an open mind, it would have realized or noted that the fact that the leader did not personally sign the cheques and allowed a committee of respectable and responsible men in the District took care of the payments of those DSG funds showed transparency in the handling of the public funds that the same guidelines are concerned about. This is a much better arrangement than that existed in Bernard Hagoria’s case and many others. Given this appreciation to the scheme that the leader had in place for disbursements of the those DSG funds, it would have dawned on the prosecution that the documentation completed and submitted to ORD as acquittals and accepted by the Office responsible for these funds were all legitimate and very transparent. No evidence to the contrary was put before the tribunal.

The leader’s explanation for the above disbursements as contained in his response to the Ombudsman Commission by letter dated 10th February, 2005 (SOR:603-633) is that, apart from the conflict in the date of one transaction which has 15th July 2003 and which the leader says it was 18th July, 2003, he received a cheque of K40,000.00 dated 10th July 2003 as part of the discretionary component of his District Support Grant on 18th July 2003 and banked it at Waigani Branch of BSP. All that money was spent according to the resolution of JDP&BPC on small community projects. He received another cheque of K40,000.00 on 11th September 2003 which he deposited into the same account. K20,000.00 was divided in half and spent in two separate locations in the electorate where independence celebrations were held as promised by the leader and the balance was spent according to the resolutions of the JDP&BPC Sub-Committee’s resolutions.

Details of these acquittals together with the minutes of the meetings preceding those payments and various applications are contained in SOR-LEADER’S RESPONSE pages 176-235. It is interesting to note what the minutes recorded in the Dei JDP&BPC Sub-Committee On Small Projects meeting held on Tuesday 24th July 2003 at a place called Goldline Lodge 12:30pm. It was the sub-committees meeting number two for that year which was attended by all the five members including its chairman, Councilor Plak Ruin, Mr Gabriel Kiap, the District Administrator who would no doubt be the Advisor or Executive Officer of the group and other Members being Cr. Henry Muna, Mr Las Opi and Mr. Peter Waiya. There was no absenteeism and no apologies recorded. The meeting was held to screen applications to fund small projects under the Member’s discretionary component of the DSG in the electorate. At the end of the Minutes the following appears:

Highlighted that we have considered all applications but I have not come across anyone applicant with proof of bank account. Hence in the event that some of these groups do not have a bank account, how do we process their (sic) payments. This committee has to deliberate whether or not we have to pay them cash.

Cr. Plak Ruin moves that because of all the groups not having bank accounts, all commitment should be paid in cash from one cheque drawn from DSG account. They be paid cash but they must sign the disbursement form and witnessed by one committee member.

The meeting minutes was signed by the Chairman Cr. Plak Ruin and the Executive Officer Mr Gabriel Kiap.

We purposely direct our attention to these excerpts from the minutes for the following reasons:

Payments were made for road patching and vegetation clearance along the roads and highways to youth and other community groups as well as families seeking assistance for rehabilitation of their coffee gardens and livelihood and rebuilding homes destroyed when caught in cross-fire between two warring clans, assisting church groups and women’s groups as shown in the minutes and disbursement acquittal forms.

If any of these payments was contrary to DSG guidelines none was pointed to us by the prosecution and no evidence in rebuttal was placed before the tribunal.

Mr Mawa for the leader submitted that the issues in respect of this allegation are:

We agree with Mr. Mawa on the issues as he identified but we also want to state for the record that it was not pointed out to us in the prosecution case that any of these payments were contrary to guidelines as alleged. According to the evidence before the tribunal the expenditure was done in accordance with the clear dictates of the guidelines. The relevant passages of the guidelines are reproduced below:

To fund projects that relate to the maintenance and construction of schools, hospitals, aid posts, and office buildings.

To fund projects that relate to community development and welfare such as community halls, libraries, purchase of equipment and materials and related.

In principle, there are no restrictions on the types of projects that can be funded under the RAP so long as the funds are channeled into areas of social, economic and infrastructure.

Project proposals must address the needs of the village, be implemented within twelve months and be located in the member’s electorate."

Every project funded fell well within the guidelines above and none fell into the restricted category. If there was any, that was not pointed out to the tribunal nor was any evidence led of it.

The point that the Chairman raised with Mr Kelly for the prosecution is clearly addressed in the minutes of the sub-committee meeting we referred to earlier. That is the reality today in Papua New Guinea where the vast majority of the population lives in the villages and country side where bank accounts are unheard of, let alone subject of their everyday conversations in their houses, under the trees where a group of young people are gathered and spending time together as their daily routine. The guidelines acknowledge not only registered community groups, but also other groups or institution recognized by the member. Such a group can be a family and an institution can be an elementary school in the village that is just starting, village aid post, adult literacy group and the list can go on, many of which do not get registered but the member does recognize their existence. They cannot be denied assistance because they are not registered.

There are practical difficulties associated with these small community groups maintaining bank accounts with commercial banks today. Firstly the procedure that must be completed before the account is given clearance for it to be opened is cumbersome and frightful for simple village people. We are aware that in some places government cheques paid out of DSG funds to some unregistered community groups became stale after one year without action being taken when the group gave up in frustration when the members could not cash it nor open an account when confronted by the bank’s requirements. Probably it is a matter that Office of Rural Development must seriously address if it is minded to alleviate poverty in the community by encouraging adult literacy and education and proper business management. Secondly, if the group is successful in opening its account, keeping the account open is another hurdle because money going into that account comes only once in a blue moon. It does not come regularly to refill the account as the credit balance reaches zero mark. Once the account is depleted, usually in a very short time, and the account is closed and goes into the dormant basket or removed from the bank’s records. So the next time the group is lucky to win a windfall again probably a year later if the Member wants to help them again, they have to go through the same routine all over again.

These are the practical realities that this sub-committee of Dei JPD&BPC was mindful of when it resolved to do what the committee thought was best. The decision to pay cash to the ultimate recipients of the funds pursuant to the sub-committee resolution was made by the sub-committee comprising respectable and honest men as members including the District Administrator of Dei District. If any of these men was corrupt or none of the monies cashed was actually paid to the recipients who completed the disbursement acquittal forms but ended up in these sub-committee members’ pockets, no such evidence was placed before the tribunal.

In any event, their wrong-doing, if proven, cannot implicate the leader whose only part in the transaction of the cheques when presented for encashment of the ‘pay cash’ cheques out of the trust account was giving his approvals on honest belief that they were cheques for the purposes they were being cashed as supported by the accompanying documents.

For these reasons the tribunal is unable to find that between 18th July 2003 and 18th September 2003 the leader conducted himself in his public life and in his association with other persons, namely, members of Dei JDP & BPC Sub-Committee On Small Projects in any way that he:

More specifically, we are unable to find that having been allocated K80,000.00 from the Office of Rural Development, being public money allocated for the development of Dei Open Electorate to be applied at his discretion in 2003, the leader:-

Essentially, prosecution has not tendered any evidence showing that the leader either alone or with other persons did anything or dealt in any way or manner with the DSG funds under investigations that any reasonable and sensible person could say that there something fishy going on which must be stopped. We therefore accept the evidence given by the leader on the use of his DSG funds both discretionary and non-discretionary to be consistent with the ORD Guidelines as accepted by that office and reject the insinuations that the leader and his associates had misapplied any of these monies or had indirectly benefited from awarding contracts without full compliance with the ORD Guidelines.

Allegations 4, 5 and 6 – Failing to disclose a liability in the annual returns to Ombudsman

The leader has pleaded guilty to these three related counts so we make no comments until we consider the question of penalty.

Count 1:	Double – dipping of motor vehicle allowances

Finding:	The charge has not been substantiated to the required standard of proof and as such we dismiss this allegation.

Reasons:	(1) No evidence that the vehicle ZGB.221 was allocated to the leader upon him becoming Minister on his request for his use as support vehicle. (2) There is evidence that the vehicle ZGB.221 was requested by the Minister’s First Secretary for his use in support of the services to the Health Ministry and retained by him for 24 hours. (3) There is no legitimate basis to find the leader liable when the Secretary and the Department felt obliged to supply a support vehicle to the Ministry as they had always done in the past to former Ministers. (4) There is a reasonable presumption that Minister’s First Secretary felt convinced that he was entitled to a 24 hour vehicle at his disposal and pursued it on that basis and not necessarily for or on behalf of the Minister as far as the Ministerial Personal Staff Act is concerned which was subsequently repealed by Official Personal Staff Act Ch.383 in 2003. (5) There is no good basis to make a scape-goat of the Minister when those in the Department of Health who facilitated for this vehicle to the Ministry were under misapprehension of the correct position under the SRC Determination. (6) No one can be penalized for being ignorant of the change in the SRC Determination if the same was not adequately explained to those to whom it applied. There are probably more ignorant leaders out there who need to be forewarned about their potential pitfalls. (7) The evidence of fuel dockets are inadmissible in that none of the drivers who refueled the vehicle BAL.544 were called and none of the suppliers were called to identify who obtained the fuel. There is therefore no evidence of this.
Count 2:	Improperly awarding road contract to Wellcos Engineering Ltd
Finding:	We find this charge unsubstantiated and therefore dismiss this allegation; hence, charge under section 27(1), (2) & (5) Constitution is not sustained

Reasons:	No credible and reliable evidence was produced

Count 3:	Applying K79,100.00 in cash cheques contrary to law
Finding:	We find this charge unsubstantiated and therefore dismiss this allegation; hence, charge under section 27(1),(2) and (5) Constitution and sections 5(1) and 13(a) and (b) OLDRL not sustained.
Reasons:	No credible and reliable evidence was produced

Upon finding the leader not guilty on Counts 1, 2 and 3 the tribunal invited counsel for prosecution to address further on penalty notwithstanding that his earlier submission at the close of the hearing when all the evidence was before the tribunal covered both the question of culpability (guilt or innocence) and penalty. This procedure was adopted at the request of the tribunal to save time. This unorthodox procedure we felt seriously denied the prosecution right to address on penalty and to bring out aggravating aspects peculiar to the leader that was or would not have been proper to raise while the issue of guilt or innocence was yet to be decided. That was the basis for the invitation to the prosecuting counsel to address further if he was minded to do so.

The invitation was also made on the basis of the leader’s previous dismissal by the leadership tribunal going back over ten years which was public knowledge and constantly made mention of in reported cases in the Papua New Guinea Law Reports and over the internet via other electronic mass media as resource information in world wide web based libraries such as PacLii.

Mr. Peter Kelly for the prosecution who no doubt had fully appraised himself of the circumstances pertaining to the earlier case involving the leader, quite rightly did not see that prior having any direct or indirect relevance to the three charges for which the leader had pleaded guilty to and was awaiting decision on penalty. He submitted that prosecution would stand by its earlier submission on penalty.

The leader pleaded guilty to the three counts in connection with his failure to disclose a liability he had by way of unpaid taxed legal costs as the result of an election related court challenge following 1997 elections. The period concerned were 2001-2002, 2002-2003 and 2003-2004. His explanation was that he had every intention to settle the debt and was making progressive payments and that was why he did not think he need disclose that. Albeit his reasoning inexcusable, we accept and he made some payments progressively for a while but did not go far enough until the bankruptcy order of 20th October, 2004 caught up with him. This caused him to act quickly and he did so when he successfully exonerated himself from that situation when the same court rescinded the bankruptcy order on 3rd November, 2004. Every person, be he/she a leader or commoner, has his/her good and bad bout in life and being declared bankrupt is one such misfortune but what matters is that it is swiftly dealt with and normalcy is restored. The fact that he was declared bankrupt because he failed to manage his life and his personal affairs properly and responsibly is a serious indictment on him as a leader that can amount to a misconduct offence as envisaged in section 27(1)(a)-(d) and (2) of the Constitution. But he is not charged with that and that is not what he is facing before this tribunal. His charge is brought under section 4(1)(h) and section 4(6)(b) OLDRL which basically provides that he was obliged by law to disclose this information in his annual statement he was required to submit to the Ombudsman Commission ( which he did give) but was not entirely truthful or honest in the information he provided in his statement when he knowingly, recklessly or negligently omitted the information on his liability (debt owing to Puri Ruing) at the time he became a leader.

We however acknowledge the leader’s belated admissions and acceptance of his blameworthiness which in our view provide good mitigation against the seriousness of the misconduct. We also take note of and acknowledge the prosecution’s view on the penalty as submitted by counsel. We also are of the view that no serious culpability has been demonstrated by or in the evidence although it was heedlessly repeated two times and as such none of them warrants the maximum penalty of dismissal. No doubt all persons of good conscience would agree that public policy and public good would not support dismissal for the leader’s failures in this regard.

What is meant by ‘serious culpability’ was discussed in the Leadership Tribunal of Honourable Peter Yama Member for Usino-Bundi Open Electorate [2004] N2746 and we are indebted to the helpful thoughts and observations made in that case. It involves serious blame, an act involving wrongful intention or negligence and an act deserving censure. This case definitely does not involve any wrongful intention on the part of the leader in concealing or not disclosing his debt to the Ombudsman Commission and not even deserving of public condemnation such as public misbehaviour reported in Michael Nali’s case. This was a private matter between the leader and the former political rival for the same seat in the Parliament.

We considered penalty less than the maximum monetary fine imposed by law in the Leadership Code (Alternative Penalties) Act Ch.1A under section 2(a) which is K1,000.00 but given that the it was repeated on two subsequent occasions, whatever the reasons, we believe K1,000 is a sufficient deterrent penalty on each of Count 4, 5 and 6, a total of K3,000.00 which he must pay forthwith.

The timing of this prosecution is of grave concern in that it is taking place well over a year after the referral by the Commission to the Public Prosecutor and on the eve of the country’s Eighth National Elections. At the time of this ruling we are in the middle of the Nomination Week, writ having being issued on Friday 4th May 2007 for one week only and expires on Thursday 9th May 2007. It leaves the leader only 24 hours to exercise his right under section 50 of the Constitution which can be quite a frustrating experience trying to rush in the last minute. This need not be if those responsible in different points of this process of scrutinizing public figures or leaders use some sense of fair and sound judgment in exercising their discretionary powers. This is no reflection on the Ombudsman Commission which completed its task and acted as quickly as it could under the given circumstances.

This prosecution could have been done earlier had Public Prosecutor acted promptly on the Commission’s referral rather taking close to a year to make that decision.

Whilst it is true that a leader must accept public scrutiny of him at all times in both his official and private lives and submit to such consequences when they arise, prosecution must be pursued, based on clear legal breaches that are capable of attracting public condemnation and disapproval of such of their actions and omissions. Not all breaches constitute misconduct offences unless an informed member of the public who sees, knows or hears of such breaches is likely to be shocked, alarmed or disturbed by the conduct and can complain to an relevant institution or authority for appropriate action.

HIS WORSHIP F. TERRA
Member
__________________________________________________

Public Prosecutor: Lawyer for the Ombudsman Commission
Mawa Lawyers: Lawyer for the Leader Hon Melchior Pep MP

^[1] [1981] PNGLR 416, 420-421
^[2] N2388- Leadership Tribunal of Honourable Michael Nali MP [2003] N2388
^[3] See N2525 – Leadership Tribunal appointed for the Honourable Bernard Hagoria Member for Yangoru-Sausia [2003] N2525.

(a)	Vehicle Cost of Vehicle	48,548.00 pa=	1867.23 per fortnight
(b)	Operational Costs	2,500.00 pa
	Comprehensive Insurance
	Fuel 15000 km @ K1.536 @ 10 ltrs per km	2,304.00 pa
	Service & Maintenance	720.00 pa
	Lubricants	120.00 pa
	Hire of vehicle	600.00 pa
	Registration & CTP Insurance	300.00 pa
		6,544.00 =	251.69 per fortnight
	ALLOWANCE:		2,118.92 per fortnight

	Driver’s Allowance		= 225.00 per fortnight

(a)	Vehicle Cost of Vehicle	12,137.00 pa =	466.81 per fortnight
(b)	Operational Costs
	Comprehensive Insurance	1,800.00 pa
	Fuel 15000 km @ K1.536 @ 15 km per litre	1,536.00 pa
	Service & Maintenance	530.00 pa
	Lubricants	90.00 pa
	Hire of vehicle	400.00 pa
	Registration & CTP Insurance	300.00 pa
		4,666.00 =	179.08 per fortnight
	ALLOWANCE:		645.89 per fortnight

(a)	Vehicle
	Cost of Vehicle	35,210.00 pa	1354.00 per fortnight
(b)	Operational Costs
	Comprehensive Insurance	2,500.00 pa
	Fuel 15000 km @ K1.536 @ 15 km per litre	2,848.00 pa
	Service & Maintenance	1,000.00 pa
	Lubricants	100.00 pa
	Registration & CTP Insurance	400.00 pa
		6,848.00	= 263.38 per fortnight
	ALLOWANCE:		1617.38 per fortnight

No.	Code	Description	Fortnight	Annual	Schedule no.	Page (SOR)
1	130	Electoral vehicle	K1354.00	K35,210.00	Sch.G97-03/6	63
2	136	Electoral vehicle operational costs	K263.38	K6,848.00
3	131	POM Official vehicle	K1,867.23	K48,548.00	Sch.G97-03/1	58
4	137	POM Official vehicle operational costs	K251.69	K6,544.00
5	132	Support vehicle	K466.81	K12,137.00	Sch.G97-03/5	62
6	138	Support vehicle operational costs	K179.03	K4,656.00

EARNINGS
CODE	DESCRIPTION	QUANTITY	VALUE (K)
100	Salary		3,218.33
125	Accommodation		1,200.00
126	Utilities		138.46
127	Telephone		115.38
128	Entertainment minor		348.07
130	Electoral vehicle		1,354.00
131	Pom/Official vehicle		1,867.23
132	Support vehicle		466.81
136	Electoral vehicle ops. costs		263.38
137	Pom/Official vehicle ops. costs		251.69
138	Support vehicle ops. costs		179.08
141	Electoral allowance		1,005.77

DATE	CHEQUE NO	DESCRIPTION	AMOUNT (K)
15.07.03	239702	Cash cheque payment	10,000.00
25.07.03	239701	Cash cheque payment	10,000.00
26.07.03	239703	Cash cheque payment	2,400.00
29.07.03	239704	Cash cheque payment	12,000.00
29.07.03	239705	Cash cheque payment	1,600.00
01.09.03	239706	Cash cheque payment	3,100.00
12.09.03	239707	Cash cheque payment	20,000.00
18.09.03	239708	Cash cheque payment	20,000.00
		TOTAL	79,100.00

Papua New Guinea Leadership Tribunal

In the matter of Melchior Pep, Member for Dei Open Electorate Western Highlands Province [2007] PGLT 1; N3134 (8 May 2007)